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COMMONWEALTH PENNSYLVANIA v. LARRY SELL (12/30/83)

decided: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
LARRY SELL, APPELLANT



No. 81-3-474, Appeal from the Order of the Superior Court dated March 6, 1981, entered at No. 234 October Term, 1979, reversing the Order of the Court of Common Pleas of Lehigh County, Trial Division, Criminal Section, dated September 25, 1979, entered at Nos. 81-82 of 1979, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott and Hutchinson, JJ., file dissenting opinions.

Author: Nix

[ 504 Pa. Page 47]

OPINION OF THE COURT

In this appeal we have agreed to decide whether, under Article I, section 8 of the Pennsylvania Constitution, which guarantees the citizens of this Commonwealth protection against unreasonable governmental searches and seizures,

[ 504 Pa. Page 48]

    a defendant accused of a possessory crime will continue to have "automatic standing" to challenge the admissibility of evidence alleged to be the fruit of an illegal search and seizure. The United States Supreme Court has abolished "automatic standing" under the Fourth Amendment to the federal Constitution. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In interpreting Article I, section 8, therefore, we must decide whether to retain the "automatic standing" principle as a matter of state constitutional law, or to embrace the reasoning and conclusions of the United States Supreme Court and eliminate that concept.

I.

On December 11, 1978 the Allentown Police Department executed a search warrant at an amusement arcade known as Games Galore located in the city of Allentown. The items set forth in the search warrant included firearms stolen in a recent burglary. As a result of the search, the police retrieved a number of firearms. These firearms were located on open shelves beneath the counter in the arcade. It was later established that this area was one to which all of the employees had access.

Appellant, who was a partner in the business, was not present at the time that the search was conducted.*fn1 Subsequent to the search appellant was arrested and charged with the crimes of receiving stolen property and criminal conspiracy. The firearms recovered during the search formed the basis for the charge of receiving stolen property. Appellant, through his counsel in a pre-trial motion, sought to suppress the use of the fruits derived from the search, contending that the search warrant was defective. The court of common pleas determined that appellant had "automatic standing" to assert the illegality of the search and, further concluding that the warrant was defective

[ 504 Pa. Page 49]

    because the reliability of the informant had not been properly established, suppressed the seized evidence. The Superior Court, 288 Pa. Super. 371, 432 A.2d 206, disagreed and held that appellant did not have standing. That court concluded that the concept of "automatic" standing had been overruled and was no longer viable and further that the appellant was unable to establish "actual" standing. We permitted review and are now being called upon to determine whether appellant was entitled to "automatic standing" under Article I, Section 8, of the Pennsylvania Constitution.

In undertaking our interpretation of that section of the state constitution, we find guidance in the admonitions of Mr. Justice Brennan of the United States Supreme Court:

[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.

Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977).

Accordingly, we shall begin our discussion by analyzing the federal case law in the area of Fourth Amendment standing.

II

It is appropriate to begin by tracing the historical development of the concept of Fourth Amendment*fn2 standing.

[ 504 Pa. Page 50]

The requirement that a criminal defendant have standing to maintain a motion to suppress evidence alleged to have been obtained in violation of the Fourth Amendment's proscription of unreasonable searches and seizures was developed by the federal courts in response to the United States Supreme Court's decision in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The obvious intent of the standing requirement, which, from its inception, was more stringent than the rules generally employed to determine standing, see Scott, Standing in the Supreme Court-A Functional Analysis, 86 Harv.L.Rev. 645 (1973) (an analysis of general standing), was to limit the applicability of the exclusionary rule announced in Weeks.*fn3 See, e.g., Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471 (1952); Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings and the Reasonable Expectation of Privacy, 31 Case W.Res.L.Rev. 656 (1981); Comment, 55 Mich.L.Rev. 567 (1957). Justification for imposing a standing requirement was most often found in the prevailing view that Fourth Amendment rights are personal rights which may not be vicariously asserted. See, e.g., Grainger v. United States, 158 F.2d 236 (4th Cir. 1946); Ingram v. United States, 113 F.2d 966 (9th Cir. 1940); Lewis v. United States, 92 F.2d 952 (10th Cir. 1937); Mello v. United States, 66 F.2d 135 (3d Cir. 1933); Brown v. United States, 61 F.2d 363 (8th Cir. 1932); Shore v. United States, 60 U.S.App.D.C. 137, 49 F.2d 519, cert. denied, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469 (1931); In Page 51} Re Dooley, 48 F.2d 121 (2d Cir. 1931); Coon v. United States, 36 F.2d 164 (10th Cir. 1929). Thus, standing to maintain a motion to suppress was sustained only where the search or seizure sought to be challenged was claimed to have violated the defendant's own Fourth Amendment rights. See, e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498 (D.C.Cir. 1950), aff'd., 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Ingram v. United States, supra; United States v. Seeman, 115 F.2d 371 (2d Cir. 1940); Cravens v. United States, 62 F.2d 261 (8th Cir. 1932), cert. denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933); United States v. DeVasto, 52 F.2d 26 (2d Cir.), cert. denied, 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573 (1931); Simmons v. United States, 18 F.2d 85 (8th Cir. 1927); Graham v. United States, 15 F.2d 740 (8th Cir. 1926), cert. denied sub nom. O'Fallon v. United States, 274 U.S. 743, 47 S.Ct. 587, 71 L.Ed. 1321 (1927).

The federal courts' early Fourth Amendment standing tests, known collectively as the "trespass doctrine", were based solely on the relative strength of the defendant's possessory interest in the items seized or the property searched. See White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 33 (1970); Edwards, Standing to Suppress Unreasonably Seized Evidence, supra; Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings, and the Reasonable Expectation of Privacy, supra. In essence, these rules found that the "personal" requirement was satisfied by a showing of a property or possessory right in the object seized or the place searched. Accordingly, the federal courts of appeals generally required an affirmative claim of ownership or possession of the seized property or a substantial possessory interest in the premises searched to establish Fourth Amendment standing. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); see generally Annot., 4 L.Ed.2d 1999 (1960); Annot., 96 L.Ed. 66 (1952).

As the term "trespass doctrine" implies, the federal courts relied on the common law of property in determining the question of standing:

[ 504 Pa. Page 52]

They have denied standing to "guests" and "invitees" (e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 218 F.2d 47, 48; Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 384; In Re Nassetta, 125 F.2d 924 [2nd Cir. 1942]; Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234), and employees, who though in "control" or "occupancy" lacked "possession" (e.g., Connolly v. Medalie, 58 F.2d 629, 630 [2nd Cir. 1932]; United States v. Conoscente, 63 F.2d 811 [2nd Cir. 1933]). The necessary quantum of interest has been distinguished as being, variously, "ownership in or right to possession of the premises" (e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48 [72 S.Ct. 93, 96 L.Ed. 59]), the interest of a "lessee or licensee" (United States v. De Bousi, 32 F.2d 902 [D.C.Mass.]), or of one with "dominion" (McMillan v. United States, 26 F.2d 58, 60 [10th Cir. 1928]; Steeber v. United States, 198 F.2d 615, 617 [10th Cir. 1952].)

Jones v. United States, supra 362 U.S. at 265-266, 80 S.Ct. at 733.

The requirement of a showing of ownership or possession of the property seized created a dilemma for defendants accused of crimes of which possession is itself an element. Judge Learned Hand articulated the position of such defendants in Connolly v. Medalie, 58 F.2d 629 (2d Cir. 1932):

Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.

Id. at 630 (emphasis added).

Under the "trespass doctrine's" formulation of standing, therefore, a defendant charged with a possessory crime who sought to suppress seized evidence was obligated to

[ 504 Pa. Page 53]

    testify as to his ownership or possession of the seized property, risking the possibility of subsequent use of such admissions by the prosecution to obtain a conviction. The essence of the dilemma is a counterposition of Fourth Amendment protection against the Fifth Amendment's privilege against self-incrimination. The interrelationship of those two amendments was alluded to by Justice Bradley in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.2d 746 (1886):

[T]he "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment.

Id. at 633, 6 S.Ct. at 533.

These questions relating to the efficacy of the "trespass doctrine" and the Judge Hand "dilemma" were first squarely addressed by the United States Supreme Court in 1960 in Jones v. United States, supra. Prior to that time, the law had evolved through lower federal court decisions.*fn4

In Jones, the defendant, charged with drug offenses, had been denied standing to object to the search of an apartment in which he was present as an invitee and in which narcotics were found. The government had challenged his standing on the grounds that he "alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an 'invitee or guest'". Id. 362 U.S. at 259, 80 S.Ct. at 730. After noting the lower federal courts' requirement that a defendant allege ownership or possession of the seized property or a substantial possessory

[ 504 Pa. Page 54]

    interest in the premises searched, the Jones Court pointed out the anomalous consequences of applying traditional standing doctrine in cases such as the one before it:

Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an ...


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